Opinion
9:15-CV-805 (TJM/CFH)
06-21-2018
KEITH WATERS, Plaintiff, v. SGT. MELENDEZ, et al., Defendants.
Thomas J. McAvoy, Sr. U.S. District Judge
DECISION & ORDER
The Court referred this 42 U.S.C. § 1983 case, which alleges violations of Plaintiff's constitutional rights during his incarceration, to the Hon. Christian F. Hummel, United States Magistrate Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
The May 18, 2018, Report-Recommendation, dkt. # 88, recommends that the Defendants' motion for summary judgment be granted on the basis that Plaintiff failed to exhausted his administrative remedies and therefore is precluded from raising his claims. The Report-Recommendation recommends that, should the Court decide that Plaintiff's failure to exhaust his administrative remedies is excused, Defendant's motion be granted with respect to Plaintiff's First Amendment retaliation claims against Defendant Muschett and denied with respect to his First Amendment retaliation claims against Defendant Melendez.
Plaintiff filed timely objections to that portion of the Report-Recommendation which concluded that he had failed to exhaust his administrative remedies. See dkt. # 90. When objections to a magistrate judge's Report-Recommendation are filed, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id.
Having reviewed the record de novo and considered the issues raised in the Plaintiff's objections, the Court has determined to accept and adopt the recommendation of Magistrate Judge Hummel for the reasons stated in the Report-Recommendation. The Court finds that Plaintiff did not exhaust his administrative remedies with respect to his retaliation claims. He may not proceed on those claims and the case will be dismissed.
Accordingly,
The Report-Recommendation of Magistrate Judge Hummel, dkt. # 88, is hereby ACCEPTED and ADOPTED. Plaintiff's objections, dkt. # 90, are hereby OVERRULED. Defendants' motion for summary judgment, dkt. # 81, is hereby GRANTED. The Clerk of Court is directed to CLOSE the case.
IT IS SO ORDERED. Dated:June 21, 2018
/s/_________
Thomas J. McAvoy
Senior, U.S. District Judge